Divorce: legal aspects and consequences

Divorce is granted by way of a judgment of the Superior Court of Québec that dissolves the marriage of a couple wishing to bring their conjugal relationship to an end. It is granted only if their marriage has broken down.

A marriage is considered to have broken down only if

Divorce dispenses the spouses from living together. It also leads to the partitioning of the family patrimony and the liquidation of the matrimonial regime.

In general, divorce also cancels any gifts in the event of death granted to either spouse in the marriage contract. Each spouse should draft a new will.

A divorce certificate is issued to the former spouses after the divorce has taken effect.

Separation
Separation can be used as the ground for the divorce if the spouses are living apart when proceedings commence before the court. The divorce is only granted after the spouses have lived apart for at least 1 year.

If the spouses start living together for one or more periods up to a total of 90 days in an attempt to reconcile, that time is not taken into consideration when calculating the 1-year period.

If the ground for the divorce is separation, the spouses only have to prove that their marriage has broken down. The spouses can apply for divorce jointly or separately, since the consent of the other spouse is not required.

Adultery
Adultery can be used as the ground for the divorce if one spouse has committed adultery.

Only the spouse who claims that the other spouse has committed adultery can apply for a divorce, and must prove that the other spouse has caused the breakdown of the marriage. An admission of adultery by the other spouse is sufficient proof.

Physical or mental cruelty
Physical or mental cruelty can be used as the ground for divorce if one spouse has treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Physical cruelty includes blows, injuries and maltreatment. Mental cruelty includes behaviour intentionally designed to inflict suffering on the other person by insult, humiliation or contempt.

Only the spouse who has suffered physical or mental cruelty can apply for divorce, and must prove that the other spouse caused the breakdown of the marriage.

In a situation of physical cruelty, the testimony of the victim is considered to be sufficient proof. The victim can also present a medical report.

In a situation of mental cruelty, the victim should record the date and place of each incident and the names of any witnesses.

Jo int application for divorce based on an agreement between the spouses
A couple can make a joint application for divorce based on an agreement between them and divorce on amicable terms if they agree on all aspects of their separation, including

The couple can draw up their own agreement, or seek assistance from a family mediator.

If the couple fail to agree, one spouse can contact a lawyer to begin divorce proceedings.